Sunday, January 22, 2012

Law Reform Commission of Ireland Consultation Paper on Mandatory Sentences

The Consultation Paper contains a detailed analysis of the development of the law in Ireland on mandatory sentences, as well as analysis of similar laws enacted in other jurisdictions such England and Wales, Scotland, Australia, New Zealand, the United States and Canada.

The only completely mandatory sentence in Ireland is the life sentence for murder – judges have no discretion here and must impose a life sentence, and do not even have the power to suggest any specific minimum sentence.

The Commission also examined other presumptive mandatory sentences, such as those introduced in 1999 for certain drugs offences and in 2006 for certain firearms offences. The drugs offence law states that 10 years should be imposed where the street value is over €13,000, but also allows for a lesser sentence in exceptional circumstances. The Commission also examined other mandatory sentences law which require judges to impose higher or consecutive sentences where the convicted person is, for example, a repeat offender.

In its document, the Commission makes a number of recommendations, among which:

while the use of the entirely mandatory sentence may be applied to the offence of murder, it should be amended to provide that, on the date of sentencing, the court should be empowered to indicate or recommend that a minimum specific term should be served by the defendant, having regard to the particular circumstances of the offence and of the offender

the presumptive sentencing regime, as it applies in the case of certain drugs and firearms offences, should not be extended to any other offences but should be reviewed because, while it has succeeded in one objective, namely, an increased severity of sentences for certain drugs and firearms offences, it has not been established that it has achieved another general aim of the criminal justice system, namely reduced levels of criminality. The Commission notes that, in particular, the presumptive drugs offences regime has had the following results: a discriminatory system of sentencing where all cases are treated alike regardless of differences in the individual circumstances of the offenders; the adaptation of the illegal drugs industry to the sentencing regime by using expendable couriers to hold and transport drugs; that these relatively low-level offenders, rather than those at the top of the drugs industry, are being apprehended and dealt with under the presumptive regime; a high level of guilty pleas in order to avoid the presumptive minimum sentence; and a consequent bulge in the prison system comprising low-level drugs offenders

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